Legal claims on rise against nursing homes

September 2, 2003

Newspaper: Boston Globe
By: Alice Dembner, Globe Staff

September 2, 2003

Ruth Ginsburg’s family brought her to a Canton nursing home in 1999 after she fell in her apartment and broke her arm. With her mild Alzheimer’s symptoms, they thought she’d be able to recover more quickly with skilled nursing care.

But over the next eight months at Meadowbrook Nursing Home, Ginsburg, 81, fell five more times, fracturing her other arm, her hip, and rebreaking the newly healed arm, according to a lawsuit her family filed against the home.

Bedridden, she developed a bed sore as big as a saucer before her daughters discovered it. Ginsburg never recovered from her injuries and died early last year.

Five years ago, Ginsburg’s family members might have been hard- pressed to find a lawyer to take their case. Falls and bed sores were often a reluctantly accepted part of nursing home care. But last November, the family sued Meadowbrook for negligence, part of a surge of legal claims against nursing homes brought by families angered by what they say is poor care and are convinced that lawsuits are the only way to force change.

“I believe they killed my mother,” said Marcia Royce, Ginsburg’s daughter. “I sued to get them to treat nursing home patients better. We’ve got to make it better for the next generation: ours.”

Since 1997, the number of settlements and verdicts in Massachusetts has grown significantly, according to outcomes reported to Massachusetts Lawyers Weekly and collected by David Hoey, a North Andover lawyer who specializes in nursing home cases. Fifteen settlements were reported last year, up from two in 1997, and lawyers say those numbers represent only a fraction of the claims made. Most cases are settled before they get to court, with confidentiality clauses that prevent any publicity.

In the Ginsburg case, the nursing home is fighting the allegations in court, but officials declined to comment.

The surge in suits does not appear to be a result of a deterioration of the care, researchers and lawyers said, but rather an increase in the value society puts on the lives of the elderly and an unwillingness to accept falls, bed sores, and diseases such as pneumonia as an expected part of the nursing home experience.

“Cases are more attractive to attorneys because of the track record across the country,” said Hoey, who decided five years ago to specialize in nursing home abuse and said he has 50 pending cases, including the Ginsburg suit. “Juries are hammering the nursing homes for big money.”

The biggest jury verdict awarded $312 million in 2001 to the son of a Texas woman so neglected in a Fort Worth nursing home that she suffered 16 bed sores, some severe enough that they penetrated to the bone. After the nursing home sought to overturn the verdict, the family agreed to accept a $20 million settlement to halt the appeal.

In Massachusetts, the largest settlement against a nursing home was $3.85 million awarded in November 2001 to the family of a comatose woman who was raped by an employee and left to endure the pregnancy without proper medical care, leading to profound brain damage to the baby.

Overall, plaintiffs have been remarkably successful in pressing their claims, receiving money in nine out of 10 cases, or three times the rate of most medical malpractice cases, according to Harvard university researchers.

“Combined with large average payouts, that makes this a substantial problem [for nursing homes] in terms of the money involved,” said David Stevenson, a doctoral candidate in health policy at Harvard. The success rate “may reflect a reluctance among lawyers and defendants to bring these cases before juries,” added David Studdert, assistant professor at the Harvard School of Public Health.

The increase in legal actions is part of a national trend that has been particularly pronounced in southern states with strong patient-rights laws. Nursing homes are facing an average of 14.5 claims annually for every 1,000 beds, nearly double the number five years ago, according to a study by Aon Risk Consultants for the nursing home industry. The average claim paid was $200,000, up from $156,000 in 1997.

In total, nursing homes nationwide faced an estimated $2.3 billion in patient claims in 2001, according to a survey of lawyers conducted by Stevenson and Studdert. In Florida and Texas, they found that more than 15 percent of nursing home spending went for legal costs. That expense forced some nursing homes into bankruptcy and left others unable to afford insurance. Lawmakers in those states, and a handful of others, have passed laws to limit awards in nursing home cases.

Massachusetts’ 500 nursing homes are beginning to feel the impact of all the lawsuits. Since 1998, liability insurance premiums have quadrupled for nursing homes to about $80,000 per facility, said W. Scott Plumb, senior vice president of the Massachusetts Extended Care Federation, the trade group for nursing homes.

A Boston lawyer who has defended many nursing homes said he hasn’t yet seen an increase in claims, but has definitely noticed an “increase in litigation consciousness.”

“Every nursing home is more careful now than they were five years ago,” said Thomas Peisch.

A dozen Massachusetts lawyers are making nursing home cases a larger part of their practices. Abigail Williams said about a third of her Worcester health law practice now involves nursing homes, compared to just a single case five years ago. Brockton lawyer Albert Grady, who secured the largest jury verdict in Massachusetts, $843,000 in a 1997 trial, said he’s handled 50 cases in the last five years, about twice the number in the previous decade.

“I’m glad to see these cases being brought because it’s going to bring about change,” said Kathryn Manson, who recently won a $125,000 verdict in a wrongful death suit against a Cape Cod nursing home. “Unfortunately in our society, the only thing that talks is money.”

Manson’s lawsuit alleged that her mother, Eleanor Joan Wells, died in 1996 after staff at Liberty Commons Rehabilitation and Skilled Care Center in Chatham failed to diagnose or treat her pneumonia. Wells, 76, was in the nursing home to recover from a broken hip.

The nursing home lost the case, but maintains it did nothing wrong in caring for Wells. “The doctors and nurses were certain of the quality of what they did,” said William Bogdanovich, director of the home.

But Manson said the verdict holds the nursing home responsible. “She had beaten cancer and she was doing well with her physical therapy,” Manson said, speaking of her mother. “We thought we were home free.”

Alice Dembner can be reached at Dembner@globe.com.

Reproduced with permission of the copyright owner. Further reproduction or distribution is prohibited without permission.

Abstract (Document Summary)

In total, nursing homes nationwide faced an estimated $2.3 billion in patient claims in 2001, according to a survey of lawyers conducted by [David Stevenson] and [David Studdert]. In Florida and Texas, they found that more than 15 percent of nursing home spending went for legal costs. That expense forced some nursing homes into bankruptcy and left others unable to afford insurance. Lawmakers in those states, and a handful of others, have passed laws to limit awards in nursing home cases.

Massachusetts’ 500 nursing homes are beginning to feel the impact of all the lawsuits. Since 1998, liability insurance premiums have quadrupled for nursing homes to about $80,000 per facility, said W. Scott Plumb, senior vice president of the Massachusetts Extended Care Federation, the trade group for nursing homes.

A dozen Massachusetts lawyers are making nursing home cases a larger part of their practices. Abigail Williams said about a third of her Worcester health law practice now involves nursing homes, compared to just a single case five years ago. Brockton lawyer Albert Grady, who secured the largest jury verdict in Massachusetts, $843,000 in a 1997 trial, said he’s handled 50 cases in the last five years, about twice the number in the previous decade.

Reproduced with permission of the copyright owner. Further reproduction or distribution is prohibited without permission.